S Mani

1

CC.254/2021 (FAIR)

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1 st CLASS, KOTHURU

Present:- Smt. S. Mani,

Judicial Magistrate of 1st Class, Amadalavalasa.

(FAC) Kothuru

Friday, this the 19 th day of April, 2024

C.C. No.254 OF 2021

Between

The State represented by the Special Enforcement Bureau Sub Inspector, S.E.B.Station, Kotturu. ….Complainant And:

Gorle Shankararao, S/o Chandrararao, aged about 39 years, R/o Padali Village, Hiramandalam Mandal, Srikakulam District.

... Accused

This case is coming on 19-04-2024 for arguments before me in the presence of

Assistant Public Prosecutor for State; and of Sri A.Dharma Rao, Advocate for accused; and the matter having stood over for consideration, this court delivered the following:

J U D G M E N T

1. The Sub Inspector of Special Enforcement Bureau Station, Kotturu filed charge sheet in Crime No.313/2020 against accused for the offence punishable under section 34 (a) of

A.P. Excise Amendment Act, 2020.

2. The brief facts of the case of prosecution are that on 11.10.2020 at about 6.30 AM,

LW-4/Bh.K.Maneswari, S.E.B Inspector along with mediators LW-1/L.Vasanthakumari , VRO, and LW-2/J.Venkatarao and LW-3/D.Prabhakararao, SEB SI proceeded and conducted patrolling at suspected places for Prohibition and Excise offences and they reached at

Metturu to Neradi Village road of Kothuru Mandal, where they found accused coming towards them by carrying one polythene bag on his motor cycle. On seeing them, he tried to escape.

Then LW-4 stopped the accused with the help of mediators and questioned about the said bag. Then he confessed that those were IML bottles. On verification of the said bag , it contains 7 Royal Stage premium whisky nip bottles each 180 ml (for sale in Odisha state only). On interrogation, accused revealed his name, address and confessed that he also stored some bottles illegally at the house named as Ayyappa Swami Sannidhanam. Then

LW4 left the place along with mediators reach the house as noted above and raid the house.

The house was locked. In the presence of mediators broke the lock and open the door and entered into the house left side of the room and found one cub board is there, then opened 2

CC.254/2021 (FAIR)

and verified the cup board and found full of IML bottles in varies brands. i.e. Royal State

Premier Whisky bottles 37 each 180 ml. , 02 Royal Green whisky bottles 28 each 180 ml.,

Mansion House whisky bottles 23 each 180 ml. Magic movement vodka bottles 13 each 180 ml., King Fisher Tin beer bottles 4 each 500 ml. In total 101 IML bottles and 4 beer bottles and also noticed that all the IML bottles have not any heal numbers and also wrote in the lable “so sell at Odisha state only”. On interrogation he revealed his name and identity and purchased the IML bottles at Haddubangi village of Odisha state from an IML shop with lower price with an intention to sell the same in his village on higher price for his livelihood. Since the possession and selling of IML bottles without valid permit is an offence, LW.4 seized the property and drawn five sample bottles from the seized property for chemical analysis under the cover of mediators report drafted at the scene of offence and obtained the signature of the accused on it. LW.4 informed him, it is an offence that possession or sale of I.M.L bottles without license and valid permit as per A.P. Excise Amendment Act, 2020 and arrested him under the cover of mediators report. LW.4 along with staff and mediators returned to station along with case property and registered a case in Crime No.313/2020 for the offence under section 34 (a) (1) of A.P. Excise Amendment Act, 2020 of Special Enforcement Bureau

Station, Kothuru. During investigation, LW-4 Excise Sub Inspector sent the sample to the

Chemical Examiner, R.P.E.L, Visakhapatnam and after due analysis of the samples,

Chemical Examiner opined that CE No.2825/2020, dated 08/12/2020, Sl.Nos.23131 to 23135 are Indian Liquor. The contraband except sample has been produced before the

Superintendent of Police, Srikakulam for confiscation orders. Therefore the accused committed an offence and he is punishable under section 34 (a) (1) of of A.P. Excise

Amendment Act, 2020. She received the chemical analysis report and after completion of investigation, she filed charge sheet. Hence the charge.

3.This case was taken on file for the offence under section 34 (a) of A.P. Excise

Amendment Act, 2020 and issued summons to accused.

4.After appearance of the accused before this court, copies of case documents were furnished to him as per section 207 Cr.P.C. Accused was examined under section 239 Cr.P.C and charge framed under section 34 (a) of A.P. Excise Amendment Act, 2020. The 3

CC.254/2021 (FAIR)

contents of charges was read over and explained to him in Telugu, for which, accused pleaded not guilty and claimed to be tried.

5.To prove the case, the prosecution cited 5 witnesses and examined lw1 AS pw1, Ex.P1 marked, LW-4/Bh.K.Maneswari as PW-2, Ex.P2 to P4 and M.Os-1 to 5 were marked. The evidence of LW-2/J.Venkartarao and LW-3/D.Prabhakararao, SEB S.I. are given up by prosecution.

6.After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. The incriminating material on record was read over and explained to him in

Telugu, having understood the same, accused denied the offence and reported no defence evidence.

7. Now the point for determination is:

Whether the prosecution proved the guilt of the accused for the offence punishable under section 34 (1) of A.P. Excise Amendment Act, 2020 beyond all reasonable doubt?

8. To prove an offence under section 34 (1) of A.P. Excise Amendment Act, 2020 the prosecution shall prove that the accused was found in possession of the seized liquor bottles and the same was being sold without license or permit. To prove the same, the prosecution examined LW 1 and LW 4 as PW -1 and 2 and Ex.P1 to P4 and MOs. 1 to 5 were marked.

9. In this case PW1 and 2 were examined and Ex.P1 to P4 and M.Os. 1 to 5 were marked. The evidence of PW-1, who is working as VRO. Deposed that about 2 years, back, police called her to act as mediator and that they traced the person with contraband, then he went to Ayyappa Swamy Sannidham . They saw accused in possession of the contraband of 7 Royal Stage Premium whisky each 180 ml. Then police seized the contraband in the presence of himself then he signed on the mediator’s report and police seized 105 bottles of two difference brands, but he can not say the name of the each brand. The evidence of PW- 2, the investigating officer, who conducted patrolling, seized property from accused, drawn 05 samples deposed that on 11.10.2020 she along with her staff and mediator went to the

Neradi road and conducting route watch, then they observed accused coming towards his bike . On verification of the said bike pocket, there are 7 IML Orissa Liquor bottles. On enquiry about that he purchased the said bottles at Haddubangi. On interrogation he also 4

CC.254/2021 (FAIR)

revealed that at Metturu village Bit-1 at Ayyappaswamy Sannidham they found two 101 IML bottles and 4 beer bottles in almyrah . She seized the property from accused, drawn five sample bottles under the cover of Ex.P1 mediators report and obtained the signatures of accused on it. Basing on Ex.P1 report, he registered a case in Crime No.313/2020 under section 34 (a)(1) of A.P. Excise Amendment Act, 2020. Ex.P2 is FIR dated 11.10.2020,

Ex.P3 is Letter of Advice dt.11.10.2020 and Ex.P4 is Chemical Analysis report dt.08.12.2020.

After verification of investigation PW-2 filed charge sheet.

10.In cross examination, PW-1 admitted that she received phone call from police station and reached the scene of offence at Ayyappa Swamy Sannidhanam at 6.30 pm. By the time at about 8 to 9 members were gathered. The said sannidhanam was surrounded by school, temple and opposite to the scene of offence and also they are two villages. In that place there is a President, Talayari are situated. After she reached the scene of offence

LW4/Maneswari open the lock and found contraband. Though 8 to 9 members gathered at the scene of offence, PW2 did not try to secure any of them as mediator.

11.In cross examination of PW-2 admitted that she seized the contraband from the alleged sannidhanam and its survey number. There are village officials, VRA, President of the said village were present.

12. As per prosecution, LW-4 accompanied LWs-1, 2 and 3, PW-2 identified accused in possession of seized property. But to elicit the said facts in occurrence report, LWs 2 and 3 were given up by the prosecution which is fatal to the case of prosecution. No special report was prepared by PW-2 the investigation officer.

11. Basing on the Ex.P.1/mediators report, Ex.P.2/FIR was registered against the accused under section 34 (a) of A.P. Excise Amendment Act, 2020. As per evidence of PW 1 and 2 , the alleged scene of offence is busy locality. As per prosecution case, LWs-2 and 3 along with PW-1 and 2 visited the scene of offence and seized the property from the custody of the accused under Ex.P1 mediators report. Except PW1 and 2, there are no independent mediators in this case. Non examination or non securing of the independent mediators from the scene of offence for the Ex.P1/mediators report is fatal to the case prosecution which was held in the case of law. In Waltair Club, Visakhapatnam represented by its 5

CC.254/2021 (FAIR)

secretary Vobbilisetty Seetharamaiah Vs. State of Andhra Pradesh represented by its

Principal Secretary, Department of Excise and Prohibition, Velegapudi, Amaravathi,

Gunturu District and others. (2022(3) ALT 343 (AP)) in para 34, 35 it was held by the

Hon’ble High Court of Andhra Pradesh in W/P.18141 of 2021 dated 29-03-2022 that no

attempt was made to secure independent mediators to act as mediators at the time of conducting panchanama by respondent No.6 as prescribed under section 100(4) of Cr.P.C.

which mandates before making a search, the concerned officer shall call upon two or more independent or respectable inhabitant of the locality in which the place to be searched is situate or any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search and non compliance section 100(4) of Cr.P.C to the panchanama report which is basis for registering FIR is vitiated and contrary to the procedure contemplated under law and quashed the FIR against the accused. Yeduru Sreenivasulu

Reddy Vs. the State of Andhra Pradesh (2001 ALD (Crl) 347) Where in it was held that at the time of Seizure, they have to conduct Panchanama/Mediators report in the presence of independent mediators by following the procedure Prescribed under section 100(4) of Cr.P.C.

In Gajamker Narayana Vs. State of A.P. (2005 (3) ALT (Crl.) 1 (A.P.)) where it was held that

Panch Witnesses should be independent respectable persons of the locality. Where contraband liquor is seized under the Prohibition Act, the panch witnesses for the seizure should be independent respectable persons of the locality where the offence was committed.

The Hon’ble High Court of A.P. held that non compliance of Sec.100(4) Cr.P.C. is fatal to case of prosecution in case laws. (a) M/S Unnimed laboratories Another Vs State of A.P. (Crl. R.C.

NO.1655, 1656 of 2006). (b) D. Vaikunta Rao and others Vs the State of AP dt. 20-04-2022).

(a) In Guthula Srinu Venkanna, East Godavari Vs. State of A.P. represented by Hyderabad

dt. 22.03.2022 in Crl.R.P.No.193 of 2013 where in the Hon’ble High Court of A.P held that

when there is no independent mediator examined, the case of the prosecution can not be relied and acquitted the accused. (b) In P.G.Raveendranath Vs. Joint Director dt.01.03.2002 where in the Hon’ble High Court of A.P. held that as per the provision of Sec.100 of Cr.P.C. it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If for any reason, he is unable to 6

CC.254/2021 (FAIR)

secure two independent mediators, he shall record reasons as to why he could not do so. No doubt non observation of the procedure mandated under Cr.P.C may not be fatal in each and every case if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of Sec.100 of Cr.P.C. but no such explanation was given by the witnesses on record for not following the procedure of Sec.100 of Cr.PC.

12. In view of the above, the prosecution failed to prove the guilt of the accused beyond all reasonable doubt, therefore the benefit of doubt goes to accused. This point is answered accordingly.

13. In the result, the accused found not guilty for the offence punishable under section 34 (1) of A.P. Excise Amendment Act, 2020. Accordingly he is acquitted under section 248 (1) Cr.P.C for the above said offence. The bail bonds of accused shall stands to be cancelled after expiry of appeal time. M.Os-1 to 5 shall be destroyed after expiry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in the open court on this the 19th day of April, 2024.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1 ST CLASS

AMADALAVALASA (FAC) KOTHURU

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: PW-1:Bh.K.Maneswari, SEB Sub Inspector None

Documents marked

For Prosecution: For Defence: Ex.P1:Mediators Report, dated 11.10.2020 Nil Ex.P2:First Information Report, dated 11.10.2020 Ex.P3:Letter of Advice dt.11.10.2020 Ex.P4:Chemical analysis report dated 08.12.2020

Material Objects

MOs -1 to 5 are sample bottles

Sd/- S.Mani,

JUDL. MAGISTRATE OF 1 ST CLASS

AMADALAVALASA (FAC) KOTHURU

// true copy//

Judl.Magistrate of 1 st Class, Kothuru 7

CC.254/2021 (FAIR)

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, KOTHURU

CALENDAR AND JUDGMENT in C.C. No.254/2021

Date of offence11.10.2020

Date of Complaint or report:11.10.2020

Date of apprehension of accused:11.10.2020

Date of release on bail: 20.10.2020

Date of appearance of accused19.01.2024

Date of commencement of trial: 15.03.2024

Date of close of trial: 15.03.2024

Date of sentence or order: 19.04.2024

Explanation for delay: No delay

The State represented by the Special Enforcement Name of the complainant: Bureau Inspector, Special Enforcement Bureau Station, Kothuru in Crime No.313/2020

Gorle Shankararao, S/o Chandrararao, aged about 39 Name of the accused: years, R/o Padali Village, Hiramandalam Mandal, Srikakulam District.

Under section 34 (1) of A.P. Excise Amendment Act, Offence: 2020.

Finding: Accused found not guilty.

In the result, the accused found not guilty for the offence punishable under section 34 (1) of A.P. Excise Amendment Act, 2020. Accordingly he is acquitted under section 248 (1) Cr.P.C for the above said offence. Sentence or Order The bail bonds of accused shall stands to be cancelled after expiry of appeal time. M.Os-1 to 5 shall be destroyed after expiry of appeal time.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1ST CLASS

AMADALAVALASA (FAC) KOTHURU

Copy to the Hon’ble 1st Additional District and Sessions Judge, Srikakulam.

// true copy// 8

CC.254/2021 (FAIR)

Judl.Magistrate of 1st Class, Kothuru

1 C.C No. 253/2021 (FAIR )

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, KOTHURU

CALENDAR AND JUDGMENT IN C.C. NO.253/2021

Date of offence : 05.10.2020

Date of Complaint or report: 05.10.2020

Date of apprehension of accused: 05.10.2020

Date of release on bail: 08.10.2020

Date of appearance of accused: 19.01.2024

Date of commencement of trial: 23.02.2024

Date of close of trial: 15.03.2024

Date of sentence or order: 19.04.2024

Explanation for delay:Due to non production of witnesses by the prosecution. Name of the complainant:State Represented by the Special Enforcement Bureau Inspector, Kothuru Station in Crime No. 308/2020 Name of the accused A1:Lukalapu Chiranjeevi, S/o Gopi, Aged 28 years, R/o Irapadu Village, Kothuru Mandal. A2: Biyyala Annapurna, W/o Chinnamnaidu, Aged 48 years, Krishnapuram Village, Kothuru Mandal. A3: Chekka Nukayya, S/o Mallesu, Aged 40 years, R/o Guppidipeta Village, Polaki Mandal A4: Nandupalli Pydithata, S/o Late Chittayya, Aged 64 years, Guppidipeta Village, Polaki Mandal Offence:Under section 7(B) r/w 8(b) of A.P. Prohibition Amendment Act, 2020. Finding:Accused No. 1 to 4 are found not guilty. Sentence or Order:In the result, the accused No. 1 to 4 are found not guilty for the offence punishable under section 7(B) r/w 8(b) of A.P. Prohibition Amendment Act, 2020. Accordingly they are acquitted under section 248 (1) Cr.P.C for the above said offence. The bail bonds of the accused shall stands to be cancelled after expiry of appeal time. M.O.s 1 to 10 shall be destroyed after expiry of appeal time.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1ST CLASS

AMADALAVALASA (FAC) KOTHURU

Copy to the Hon’ble 1st Additional District and Sessions Judge, Srikakulam.

// true copy//

Judl.Magistrate of 1st Class, 2 C.C No. 253/2021 (FAIR )

Amadalavalasa (FAC) Kothuru

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1st CLASS,

KOTHURU

Present : Smt. S. Mani

Judicial Magistrate of 1st Class

Amadalavalasa (FAC) Kothuru

Friday, this the 19 th day of April, 2024

C.C. No. 253 of 2021

Between :

State Represented by the Special Enforcement Bureau Inspector, Kothuru Station ..… Complainant And :

A1 : Lukalapu Chiranjeevi, S/o Gopi, Aged 28 years, R/o Irapadu Village, Kothuru Mandal. A2 : Biyyala Annapurna, W/o Chinnamnaidu, Aged 48 years, Krishnapuram Village, Kothuru Mandal A3 : Chekka Nukayya, S/o Mallesu, Aged 40 years, R/o Guppidipeta Village, Polaki Mandal A4 :Nandupalli Pydithata, S/o Late Chittayya, Aged 64 years, Guppidipeta Village, Polaki Mandal ..… Accused

This case is coming on 19.04.2024 for final hearing before me in the presence of Learned Assistant Public Prosecutor for Complainant; and of Sri. Ch. Ravikiran and Sri. L. Sriramadhutham and Sri. A. Dharma Rao, Advocates for accused No. 1 to 4; and the matter having stood over for consideration till this day, this court delivered the following :

J U D G M E N T

1. The Inspector of Special Enforcement Bureau Station, Kothuru filed charge sheet in Crime No. 308/2020 against the accused No. 1 to 4 for the offence punishable under section 7(B) r/w 8(b) of A.P. Prohibition

Amendment Act, 2020.

2. The brief facts of the case of prosecution are that on 05.10.2020 at about 07:30 PM, LW5 assisted by his staff while conducting route watch at

Irapadu Village limits, Kothuru Mandal detected a case involving four persons, while they were coming with one Max Pickup Van bearing No.

AP30-W-1789. They tried to escape, but with the help of staff, LW5 surrounded the vehicle and detained them. On questioning by LW5 about their escape, they replied that they were carrying I.D liquor with them. On 3 C.C No. 253/2021 (FAIR ) verification of van, they found 10 blue plastic cans which containing 200 liters of I.D liquor, each can containing 20 liters of I.D liquor. Then on questioning by LW5 the accused revealed their names and identities and that they purchased the I.D. liquor from an unknown person for lower price with an intention to sell the same at higher price in their village to earn livelihood. Since the possession and selling of ID liquor without valid permit is an offence, LW5 seized the property, later drawn six sample bottles of 280 ml., from the above plastic can for chemical analysis and affixed identification slips on those samples and property duly signed by the officials and accused No. 1 to 4, sealed and seized the property under the cover of occurrence report, drafted at the scene of offence and sent them to court for judicial remand. LW5 returned to station along with case property and registered a case in Crime No. 308/2020 for the offence under section 7(a) r/w 8(e)(C) of A.P. Prohibition Amendment Act, 2020 of Special Enforcement Bureau Station, Kothuru.

3.During the course of investigation, LW5 sent the samples to the

Government Chemical Examiner, R.P.E.L, Visakhapatnam for analysis and after due analysis of the sample, Chemical Examiner opined that CE

No.2826/2020, dated 09.12.2020 SL.No.23223 to 23232 are “Illicitly distilled liquor”. Unfit for human consumption and injurious to health”.

The contraband except sample has been produced before the

Superintendent of Police, Srikakulam for confiscation and destruction of the contraband U/Sec. 46 of A.P. Excise Act-1968. Therefore, the accused

No. 1 to 4 were committed an offence and they were punishable under section 7(a) r/w 8(e)(C) of A.P. Prohibition Amendment Act, 2020. After completion of investigation, LW5 filed charge sheet. Hence the charge.

4. This case was taken on file for the offence under section 7(B) r/w 8(b) of A.P.Prohibition Amendment Act, 2020 and issued summons to the accused No. 1 to 4.

5. After appearance of the accused No. 1 to 4 before this court, copies of case documents were furnished to them as per section 207 Cr.P.C.

Accused No. 1 to 4 were examined under section 239 Cr.P.C and charge framed under section 7(B) r/w 8(b) of A.P.Prohibition Amendment Act, 2020. The contents of charge was read over and explained to them in

Telugu, for which, they pleaded not guilty and claimed to be tried.

4 C.C No. 253/2021 (FAIR )

6. To prove the case, the prosecution examined LWs 1, 2 & 5 as PWs 1 to 3. Ex.P1 to P7 and MOs 1 to 10 are marked. The evidence of LWs 3 & 4 were given up by the prosecution.

7. After closure of the prosecution evidence, the accused No. 1 to 4 were examined under Section 313 Cr.P.C. The incriminating material on record was read over and explained to them in Telugu, having understood the same, they denied the offence and reported no defence evidence.

8. Now the point for determination is :

Whether the prosecution proved the guilt of the accused No. 1 to 4 for the offence punishable under section 7(B) r/w 8(b) of A.P.Prohibition Amendment Act, 2020 beyond all reasonable doubt ?

9. To prove an offence under section 7(B) r/w 8(b) of A.P.Prohibition

Amendment Act, 2020, the prosecution shall prove that the accused No. 1 to 4 were found in possession of the seized I.D liquor and the same were being transported and sold without license or permit. To prove the same, the prosecution examined PWs 1 & 2 who are the mediators and PW3 is the Investigation Officer who conducted route watch, seized the contraband, drawn sample, arrested the accused No. 1 to 4. PW3 after receiving of the chemical analysis report and after completion of investigation filed the charge sheet.

10. In this case PWs 1 to 3 were examined and Ex.P1 to P7 and M.O.s 1 to 10 were marked. The evidence of PWs 1 & 2 turned hostile and not supported the case of prosecution and were cross examined by the prosecution after obtaining permission from the court. Even in the respective cross examination of PWs 1 & 2 by the prosecution, nothing was elicited except the suggestions. In this case PWs 1 & 2 resiled from their report and not supported the case of prosecution. PW1 state that A1 called him to act as mediator and requested him to sign on a written paper that he purchased some contraband. PW1 identified his signature on mediators report and the same is marked as Ex.P1. In his cross examination by defence counsel, PW1 deposed that he do not know who prepared mediators report and who signed on mediators report along with him. PW2 deposed that at requst of police, he signed on mediators report at police station but he do not know its contents and identified his signature which is marked as Ex.P2. PW2 also turned hostile and he was cross examined by the prosecution.

5 C.C No. 253/2021 (FAIR )

11.In this case PW3 was examined and Ex.P3 to P7 and MOs 1 to 10 were marked. The evidence of PW3 is that on 05.10.2020 at about 07-30 PM, she along with her staff went to Irapadu Village and conducted route watch and identified the accused No. 1 to 4 carrying contraband in a Bolero

Vehicle. On verification of van, they found 10 blue plastic cans which containing 200 liters of I.D liquor, each can containing 20 liters of I.D liquor. PW3 accompanied her staff to the scene of offence and seized the property from the accused No. 1 to 4 in the presence of PWs 1 & 2 under the cover of occurrence report and drawn sample from the seized contraband. Basing on the Ex.P3/Mediators Report, she registered the case in Cr.No.308/2020 under section 7(A) r/w 8(e)(C) of A.P. Prohibition

Amendment Act, 2020. Mediator report is marked as Ex.P3, FIR is marked as Ex.P4. Letter of Advice is marked as Ex.P5. Chemical Analysis report is marked as Ex.P6, Destruction proceedings is marked as Ex.P7.

12. In cross examination, PW3 admitted that she drafted Mediators

Report on the side of the tank, but she did not secure the presence of

VRO, Secretary of Irapadu Bit-3 to act as mediators in this case and she did not prepare any special report for non securing of mediators.

13. Basing on the Ex.P3 Mediators Report, Ex.P4/FIR was registered against the accused No. 1 to 4 under section 7(A) r/w 8(e)(C) of A.P.

Prohibition Amendment Act, 2020. As per evidence of PW3, the alleged scene of offence is Irapadu Bit-3, but not Vamsadhara Irapadu.

Therefore, there is every possibility to secure mediators, but she did not secure the mediators and not complied mandatory provision under section 100(4) of Cr.P.C. Even in the evidence of PW3, it was not elicited to whom they asked to act as mediators and who refused to act, as such and their names and the action taken by them when they refused to act as mediators. Except PW3, there are no independent mediators in this case.

Non securing of the independent mediators for the Ex.P3/Mediators Report is fatal to the case of prosecution which was held in the case of Law. In

Waltair Club, Visakhapatnam represented by its secretary Vobbilisetty

Seetharamaiah Vs. State of Andhra Pradesh represented by its

Principal Secretary, Department of Excise and Prohibition,

Velegapudi, Amaravathi, Gunturu District and others. (2022(3)

ALT 343 (AP)) in para 34, 35 it was held by the Hon’ble High Court of

Andhra Pradesh in W.P.18141 of 2021 dated 29.03.2022 that no 6 C.C No. 253/2021 (FAIR ) attempt was made to secure independent mediators to act as mediators at the time of conducting panchanama by respondent No.6 as prescribed under section 100(4) of Cr.P.C. which mandates before making a search, the concerned officer shall call upon two or more independent or respectable inhabitant of the locality in which the place to be searched is situate or any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search and non compliance section 100(4) of Cr.P.C to the panchanama report which is basis for registering F.I.R is vitiated and contrary to the procedure contemplated under law and quashed the F.I.R against the accused No. 1 to 4. Yeduru

Sreenivasulu Reddy Vs. the State of Andhra Pradesh (2001 ALD

(Crl) 347) Where in it was held that at the time of Seizure, they have to conduct Panchanama/Mediators Report in the presence of independent mediators by following the procedure Prescribed under section 100(4) of

Cr.P.C. In Gajamker Narayana Vs. State of A.P. (2005 (3) ALT (Crl.) 1 (A.P.)) where it was held that Panch Witnesses should be independent respectable persons of the locality. Where contraband liquor is seized under the Prohibition Act, the panch witnesses for the seizure should be independent respectable persons of the locality where the offence was committed. The Hon’ble High Court of A.P. held that non compliance of

Sec.100(4) Cr.P.C. is fatal to case of prosecution in case laws. (a) M/S

Unnimed laboratories Another Vs State of A.P. (Crl. R.C. NO.1655,

1656 of 2006), (b) D. Vaikunta Rao and others Vs the State of AP

dt. 20.04.2022). When the independent witnesses are not examined by

the prosecution, the prosecution theory of seizing the contraband from the custody of the accused has to be looked with suspicion. Non Examination of independent mediators is fatal to the case of prosecution. The seizure proceeding drafted also cannot be considered in view of 5 the bar under section 25 and 27 of Indian Evidence Act and 161 of Cr.P.C. It is not a case where the property was seized by virtue confession of the accused.

14. In view of the above, the prosecution failed to prove the guilt of the accused No. 1 to 4 beyond all reasonable doubt, therefore the benefit of doubt goes to accused No. 1 to 4. This point is answered accordingly.

15. In the result, the accused No. 1 to 4 are found not guilty for the offence punishable under section 7(B) r/w 8(b) of A.P .Prohibition

Amendment Act, 2020. Accordingly they are acquitted under section 248 (1) Cr.P.C for the above said offence. The bail bonds of the accused No. 1 7 C.C No. 253/2021 (FAIR ) to 4 shall stands to be cancelled after expiry of appeal time. M.O.s 1 to 10 shall be destroyed after expiry of appeal time.

Dictated to the Typist, corrected and pronounced by me in open

Court on this the 19th day of April, 2024.

Sd/- S.Mani,

Judicial Magistrate of 1st Class,

Amadalavalasa (FAC) Kothuru.

Appendix of Evidence

Witnesses Examined

For Prosecution : -

PW1 : Meesala Someswararao

PW2 : Botcha Ramarao

PW3 : Bh. K. Maneswari, S.E.B Inspector, Kothuru

For Defence : - None -

Documents Marked

For Prosecution :

Ex.P1 : Signature of PW1 on the Mediators Report, dated 05.10.2020

Ex.P2 : Signature of PW2 on the Mediators Report, dated 05.10.2020

Ex.P3 : Mediators Report, dated 05.10.2020

Ex.P4 : First Information Report, dated 05.10.2020

Ex.P5 : Letter of Advice, dated 05.10.2020

Ex.P6 : Chemical Analysis Report, dated 09.12.2020

Ex.P7 : Destruction Proceedings issued by the Superintendent of Police, Srikakulam dated 10.04.2021

For Defence : - Nil -

Material Objects Marked

MOs 1 to 10 are sample bottles.

Sd/- S.Mani,

Judicial Magistrate of 1st Class,

Amadalavalasa (FAC) Kothuru.

1

CC.378/2023 (FAIR)

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1 st CLASS, KOTHURU

Present:- Smt. S. Mani,

Judicial Magistrate of 1st Class, Amadalavalasa.

(FAC) Kothuru

Friday, this the 19 th day of April, 2024

C.C. No.378 of 2023

Between

The State represented by the Special Enforcement Bureau Sub Inspector, S.E.B.Station, Kotturu. ….Complainant And:

Gorrebanda Hari, S/o Yendu, aged 33 years, Cultivation, R/o Vasapa colony and village, Kotturu Mandal, Srikakulam District.

... Accused

This case is coming on 19-04-2024 for arguments before me in the presence of

Assistant Public Prosecutor for State; and of Sri R.Raju and L.Sriramadutam, Advocates for accused; and the matter having stood over for consideration, this court delivered the following:

J U D G M E N T

1. The Sub Inspector of Special Enforcement Bureau Station, Kotturu filed charge sheet in Crime No.160/2022 against accused for the offence punishable under section 34 (a)(1) of A.P. Excise Amendment Act, 2020.

2. The brief facts of the case of prosecution are that on 15.06.2022 at about 5.30 PM, as per the instructions of Joint Director and Assistant Commissioner of Special Enforcement

Bureau, Srikakulam, DTF Intelligence Wing, Srikakulam and on reliable information received by SEB Station officials, LW-4/D.Prabhakararao, S.E.B Sub Inspector along with his staff and mediators LW-1/G.Mounika, WPC, LW-2/K.Nageswara Rao, SEB EC and

LW-3/Ch.Rajasekharababu, SEB HC proceeded and conducted patrolling at suspected places for Prohibition and Excise offences and they reached at Nivagam village limits of Kotturu

Mandal, they found accused coming towards him by carrying one white urea bag. On seeing them, accused tried to escape from there with the said bag in a confusing and in a hurried manner. Then LW-4 stopped the accused with the help of staff and mediators and questioned about the said bag. Then he confessed that those were liquor bottles. On verification of the said cover, it contains 24 NDPL Liquor (Breezer Cran Bary Flavour low 2

CC.378/2023 (FAIR)

alcohol liquor bottles each 275 ml. (MRP 90/-) (for sale in Odisha state only). On interrogation, accused revealed his name, address and confessed that he purchased the

NDPL bottles at Haddubangi wine shops of Odisha state at Rs.120/- each bottle and to sell the same in his village on higher price at Rs.130/- each bottle for his livelihood. Since the possession and selling of liquor bottles without valid permit is an offence, LW.4 seized the property and drawn sample bottle from the seized property for chemical analysis under the cover of mediators report drafted at the scene of offence and obtained the signature of the accused on it. LW.4 informed him, it is an offence that possession or sale of N.D.P.L.

bottles without license and valid permit as per A.P. Excise Amendment Act, 2020 and arrested him under the cover of mediators report. LW.4 along with staff and mediators returned to station along with case property and registered a case in Crime No.160/2022 for the offence under section 34 (a) (1) of A.P. Excise Amendment Act, 2020 of Special

Enforcement Bureau Station, Kothuru. During investigation, LW-4 Excise Sub Inspector sent the sample to the Chemical Examiner, R.P.E.L, Visakhapatnam and after due analysis of the samples, Chemical Examiner opined that CE No.1505/2022, dated 29.08.2022,

Sl.No.8404 is 8.2 PS and it is an alcoholic Beverage. The contraband except sample has been produced before the Dy.Commissioner of Special Enforcement Bureau, Visakhapatnam for confiscation orders in turn they issued proceedings. Therefore the accused committed an offence and he is punishable under section 34 (a) (1) of of A.P. Excise Amendment Act, 2020. LW-4/D.Prabhakararao, SEB Sub Inspector received the chemical analysis report and after completion of investigation, he filed charge sheet. Hence the charge.

3.This case was taken on file for the offence under section 34 (a) (1) of A.P. Excise

Amendment Act, 2020 and issued summons to accused.

4.After appearance of the accused before this court, copies of case documents were furnished to him as per section 207 Cr.P.C. Accused was examined under section 239 Cr.P.C and charge framed under section 34 (a) (1) of A.P. Excise Amendment Act, 2020. The contents of charges was read over and explained to him in Telugu, for which, accused pleaded not guilty and claimed to be tried.

3

CC.378/2023 (FAIR)

5.To prove the case, the prosecution cited 4 witnesses and examined

LW-4/D.Prabhakararao as PW-1, Ex.P1 to P5 and M.O-1 were marked. The evidence of LW- 1/G.Mounika, WPS, LW-2/K.Nageswararao, SEB EC and LW-3/Ch.Rajasekharababu, SEB

HC were given up by the prosecution.

6.After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. The incriminating material on record was read over and explained to him in

Telugu, having understood the same, accused denied the offence and reported no defence evidence.

7. Now the point for determination is:

Whether the prosecution proved the guilt of the accused for the offence punishable under section 34 (a) (1) of A.P. Excise Amendment Act, 2020 beyond all reasonable doubt?

8. To prove an offence under section 34 (a)(1) of A.P. Excise Amendment Act, 2020 the prosecution shall prove that the accused was found in possession of the seized NDPL bottles and the same was being sold without license or permit. To prove the same, the prosecution examined LW 4 as PW -1 and Ex.P1 to P5 and MO. 1 were marked.

9. In this case only PW1 was examined and Ex.P1 to P5 and M.O. 1 were marked. The evidence of PW-1, the investigating officer, who conducted patrolling, seized property from accused, drawn one sample deposed that on 15.06.2022 at about 5.30 PM, he along with staff and mediators proceeded and conducted patrolling at suspected places for Prohibition and Excise offences and they reached at Nivagam village limits of Kotturu Mandal , identified the accused in possession of the seized contraband 24 NDPL Liquor (Breezer Cran Bary

Flavour low alcohol liquor bottles each 275 ml. (for sale in Odisha state only). He seized the property from accused, drawn one sample bottle under the cover of Ex.P1 mediators report and obtained the signatures of accused on it. Basing on Ex.P1 report, he registered a case in

Crime No.160/2022 under section 34 (a)(1) of A.P. Excise Amendment Act, 2020. Ex.P2 is

FIR dated 15.06.2022, Ex.P3 is Letter of Advice dt.15.06.2022, Ex.P4 is Chemical Analysis report dt.08.12.2020, Ex.P5 is copy of destruction order dt.31.03.2023. After completion of investigation he filed charge sheet.

4

CC.378/2023 (FAIR)

10.In cross examination, PW-1 admitted that he did not secure independent mediators for seizing the property from the possession of the accused and also not mentioned the names of the mediators, whom he requested at the scene of offence to act as mediators.

As per prosecution, LW-4 accompanied LWs-1, 2 and 3, PW-1 identified accused in possession of seized property. But to elicit the said facts in occurrence report, LWs 1 to 3 were not examined by prosecution and LWs 1 to 3 were not produced before the court by prosecution and there are no independent mediators for seizing of property from the possession of the accused under Ex.P1 mediators report which is fatal to the case of prosecution. No special report was prepared by PW-1 the investigation officer for non securing of the independent mediators.

11. Basing on the Ex.P.1/mediators report, Ex.P.2/FIR was registered against the accused under section 34 (a) (1) of A.P. Excise Amendment Act, 2020. As per evidence of PW 1, the alleged scene of offence is busy locality. As per prosecution case, LWs-1 to 3 along with

PW-1 who visited the scene of offence and seized the property from the custody of the accused under Ex.P1 mediators report. Except PW1, there are no independent mediators in this case. Non examination or non securing of the independent mediators for the

Ex.P1/mediators report is fatal to the case prosecution which was held in the case of law. In

Waltair Club, Visakhapatnam represented by its secretary Vobbilisetty Seetharamaiah

Vs. State of Andhra Pradesh represented by its Principal Secretary, Department of

Excise and Prohibition, Velegapudi, Amaravathi, Gunturu District and others. (2022(3)

ALT 343 (AP)) in para 34, 35 it was held by the Hon’ble High Court of Andhra Pradesh in

W/P.18141 of 2021 dated 29-03-2022 that no attempt was made to secure independent mediators to act as mediators at the time of conducting panchanama by respondent No.6 as prescribed under section 100(4) of Cr.P.C. which mandates before making a search, the concerned officer shall call upon two or more independent or respectable inhabitant of the locality in which the place to be searched is situate or any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search and non compliance section 100(4) of Cr.P.C to the panchanama report which is basis for registering FIR is vitiated and contrary to the procedure contemplated under law and quashed the FIR against the 5

CC.378/2023 (FAIR)

accused. Yeduru Sreenivasulu Reddy Vs. the State of Andhra Pradesh (2001 ALD (Crl)

347) Where in it was held that at the time of Seizure, they have to conduct

Panchanama/Mediators report in the presence of independent mediators by following the procedure Prescribed under section 100(4) of Cr.P.C. In Gajamker Narayana Vs. State of

A.P. (2005 (3) ALT (Crl.) 1 (A.P.)) where it was held that Panch Witnesses should be independent respectable persons of the locality. Where contraband liquor is seized under the

Prohibition Act, the panch witnesses for the seizure should be independent respectable persons of the locality where the offence was committed. The Hon’ble High Court of A.P. held that non compliance of Sec.100(4) Cr.P.C. is fatal to case of prosecution in case laws. (a) M/S

Unnimed laboratories Another Vs State of A.P. (Crl. R.C. NO.1655, 1656 of 2006). (b) D.

Vaikunta Rao and others Vs the State of AP dt. 20-04-2022). (a) In Guthula Srinu Venkanna,

East Godavari Vs. State of A.P. represented by Hyderabad dt. 22.03.2022 in Crl.R.P.No.193 of 2013 where in the Hon’ble High Court of A.P held that when there is no independent mediator examined, the case of the prosecution can not be relied and acquitted the accused.

(b) In P.G.Raveendranath Vs. Joint Director dt.01.03.2002 where in the Hon’ble High Court of

A.P. held that as per the provision of Sec.100 of Cr.P.C. it is clear that whenever any officer intends to search any premises, it is incumbent on his part to secure the presence of two independent mediators. If for any reason, he is unable to secure two independent mediators, he shall record reasons as to why he could not do so. No doubt non observation of the procedure mandated under Cr.P.C may not be fatal in each and every case if the concerned authority who made the search and seizure has given cogent and convincing explanation as to how and why he could not comply with the provisions of Sec.100 of Cr.P.C. but no such explanation was given by the witnesses on record for not following the procedure of Sec.100 of Cr.PC.

12. In view of the above, the prosecution failed to prove the guilt of the accused beyond all reasonable doubt, therefore the benefit of doubt goes to accused. This point is answered accordingly.

6

CC.378/2023 (FAIR)

13. In the result, the accused found not guilty for the offence punishable under section 34 (a) (1) of A.P. Excise Amendment Act, 2020. Accordingly he is acquitted under section 248 (1) Cr.P.C for the above said offence. The bail bonds of accused shall stands to be cancelled after expiry of appeal time. M.O-1 shall be destroyed after expiry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in the open court on this the 19th day of April, 2024.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1 ST CLASS

AMADALAVALASA (FAC) KOTHURU

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution: For Defence: PW-1:D.Prabhakararao, SEB Sub Inspector None

Documents marked

For Prosecution: For Defence: Ex.P1:Mediators Report, dated 15.06.2022 Nil Ex.P2:First Information Report, dated 15.06.2022 Ex.P3:Letter of Advice dt.15.06.2022 Ex.P4:Chemical analysis report dated 29.08.2022 Ex.P5:Copy of destruction order dt.31.03.2023

Material Objects

MO -1 sample bottle

Sd/- S.Mani,

JUDL. MAGISTRATE OF 1 ST CLASS

AMADALAVALASA (FAC) KOTHURU

7

CC.378/2023 (FAIR)

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, KOTHURU

CALENDAR AND JUDGMENT in C.C. No.378/2023

Date of offence15.06.2022

Date of Complaint or report:15.06.2022

Date of apprehension of accused:15.06.2022

Date of release on bail: 21.06.2022

Date of appearance of accused16.02.2024

Date of commencement of trial: 15.03.2024

Date of close of trial: 15.03.2024

Date of sentence or order: 19-04-2024

Explanation for delay: No delay

The State represented by the Special Enforcement Name of the complainant: Bureau Sub Inspector, Special Enforcement Bureau Station, Kothuru in Crime No.160/2022.

Gorrebanda Hari, S/o Yendu, aged 33 years, Name of the accused: Cultivation, R/o Vasapa colony and village, Kotturu Mandal, Srikakulam District.

Under section 34 (a)(1) of A.P. Excise Amendment Offence: Act, 2020.

Finding: Accused found not guilty.

In the result, the accused found not guilty for the offence punishable under section 34 (a) (1) of A.P. Excise Amendment Act, 2020. Accordingly he is Sentence or Order acquitted under section 248 (1) Cr.P.C for the above said offence. The bail bonds of accused shall stands to be cancelled after expiry of appeal time. M.O-1 shall be destroyed after expiry of appeal time.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1ST CLASS

AMADALAVALASA (FAC) KOTHURU

Copy to the Hon’ble 1st Additional District and Sessions Judge, Srikakulam.

8

CC.378/2023 (FAIR)

1

CC.256/2021 (FAIR)

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1ST CLASS, KOTHURU

CALENDAR AND JUDGMENT in C.C. NO.256/2021

Date of offence25.01.2021

Date of Complaint or report:25.01.2021

Date of apprehension of accused:25.01.2021

Date of release on bail: 29.01.2021

Date of appearance of accused19.01.2024

Date of commencement of trial: 01.03.2024

Date of close of trial: 15.03.2024

Date of sentence or order: 19.04.2024

Due to non production of witnesses by the Explanation for delay: prosecution.

Sub Inspector, Special Enforcement Bureau Name of the complainant: Station, Kothuru in Cr. No.33/2021

1) Dumpala Kamayya, S/o Appayya, age 32 years, R/o Vasapa colony village, Kotturu Mandal Name of the accused:

2) Vada Rama Rao, S/o Tavitayya, aged 47 years, R/o Nivagam Village, Kothuru Mandal,

Under section 7(B) r/w 8(B) of A.P. prohibition Offence: Amendment Act, 2020.

Finding: Accused 1 and 2 found not guilty.

In the result, the accused 1 and 2 found not guilty for the offence punishable under section 7-B r/w 8-B of A.P.Prohibition Amendment Act 2020. Accordingly they are acquitted under Sentence or Order section 248 (1) Cr.P.C for the above said offence. The bail bonds of accused shall stands to be cancelled after expiry of appeal time. M.Os-1 and 2 shall be destroyed after expiry of appeal time.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1 ST CLASS

AMADALAVALASA (FAC) KOTHURU

Copy Submitted to the Hon’ble 1st Additional District and Sessions Judge, Srikakulam.

// true copy//

Judl.Magistrate of 1st Class, Kothuru 2

CC.256/2021 (FAIR)

IN THE COURT OF THE JUDICIAL MAGISTRATE OF 1 st CLASS, KOTHURU.

Present : Smt. S. Mani,

Judicial Magistrate of 1st Class, Amadalavalasa.

(FAC) Kothuru

Friday, this the 19 th day of April, 2024

C.C. No.256 of 2021

Between:

The State represented by the Special Enforcement Bureau Sub- Inspector, Spl. Enforcement Bureau station, Kothuru in Crime No.33/2021. … Complainant And :

1. Dumpala Kamayya, S/o Appayya, aged 32 years, R/o Vasapa Colony, Kotturu Mandal, Srikakulam District.

2. Vada Rama Rao, S/o Tavitayya, aged 47 years, R/o Nivagam Village, Kotturu Mandal, Srikakulam District. … Accused 1 and 2

This case is coming on 12.04.2024 for arguments before me in the presence of

Assistant Public Prosecutor for State; and of Sri. V.Sudhakara Rao, Advocate for accused 1 and 2 ; upon hearing both sides; and the matter having stood over for consideration, this court delivered the following :

J U D G M E N T

1.The Sub Inspector of Police, Special enforcement Bureau Station, Kothuru filed charge sheet in Cr.No.33/2021 against accused for the offence punishable under section 7(B) r/w 8(b) of A.P Prohibition Amendment Act, 2020.

2.The brief facts of the case of prosecution are that on 25.01.2021 at 11.30

PM, LW-3/D.Prabhakararrao, SEB S.I. along with his staff LW-1/N.Krishnarao, SEB HC and

LW-2/N.Ramana SEB EC proceeded and conducted patrolling at Nivagam Village limits of

Kotturu mandal for Prohibition and Excise Offences, where they found accused 1 and 2 coming towards them on one Hero Honda Glamour bearing No.AP 30 AR 4084 and kept one gunny bag. On seeing them they tried to escape, then LW.3 stopped him with the help of his staff. On questioning about the said bag, they revealed that it was ID liquor. On suspicion, they verified the said bag, containing about 500 ID Liquor sachets each 100 ml (50 ltrs. of

ID). On interrogation, accused 1 and 2 revealed their names and addresses and also confessed that the property purchased from unknown person for profit. Since the possession and selling of ID liquor is not fit for human consumption. LW.3 seized the property, drawn two

ID sachets in to a paper packet from the seized property for chemical analysis. LW.3 informed to them, it is an offence that possession or sale of ID liquor as per A.P.Proh.

Amendment Act, 2020 and arrested the accused under the cover of occurrence report drafted 3

CC.256/2021 (FAIR)

at the scene of offence. LW.3 returned to station along with case property and registered a case in Cr.No.33/2021 for the offence under section 7(B) r/w 8(B) of A.P. Prohibition

Amendment Act, 2020 of S.E.B., Kothuru. Then produced the accused 1 and 2 to court for remand. During investigation, LW-3 sent the sample to the Chemical Examiner, R.P.E.L,

Visakhapatnam and after due analysis of the sample, Chemical Examiner opined that CE

No.601/2021, dated 20.03.2020, Sl. No.6356 is Illicit Distilled liquor unfit for human consumption and injuries to health. The contraband except sample has been produced

before Superintendent of Police, Srikakulam for confiscation orders. Therefore the accused 1

and 2 committed an offence and they were punishable under section 7(B) r/w 8(B) of A.P.

Prohibition Amendment Act, 2020. After completion of investigation, LW-4/Bh.K.Maneswari,

Proh. & Excise Inspector filed charge sheet . Hence the charge.

4. This case was taken on file for the offence under section under section 7(B) r/w 8(B) of A.P. Prohibition Amendment Act 2020 and issued summons to the accused.

5.After appearance of the accused 1 and 2 before this court, copies of case documents were furnished to him as per section 207 Cr.P.C. Accused was examined under section 239 Cr.P.C and charge framed under section 7(B) r/w 8(B) of A.P. Prohibition

Amendment Act 2020. The contents of charge was read over and explained to them in

Telugu for which, he pleaded not guilty and claimed to be tried.

6.To prove the case, the prosecution examined LW-3 as PW-1 and Ex.P.1 to P.4 and M.Os.1 and 2 were marked. The evidence of LWs 1, 2 and 4 were given up by the prosecution.

7.After closure of the prosecution evidence, the accused 1 and 2 were examined under section 313 Cr.P.C. The incriminating material on record was read over and explained to them in Telugu, having understood the same, he denied the offence and reported no defence evidence.

8. Now the point for determination is

Whether the prosecution proved the guilt of the accused 1 and 2 for the offence punishable under section 7(B) r/w 8(B) of A.P.Prohibition Amendment Act 2020 beyond all reasonable doubt ?

9.To prove an offence under section under section 7(B) r/w 8(B) of

A.P.Prohibition Amendment Act, 2020, the prosecution shall prove that the accused 1 and 2 were found in possession of the seizedID liquor and the same was carrying by the accused 1 and 2. To prove the same, the prosecution examined PW.1, the investigation officer who conducted the raid, seized the bottlesand bike, drawn samples, arrested the accused and after receiving of the chemical analysis report, LW-4 filed the charge sheet.

4

CC.256/2021 (FAIR)

10. In this case only PW.1 was examined and Ex.P.1 to P.4 and M.Os.1 and 2 were marked i.e., Ex.P.1 is occurrence report, Ex.P.2 is First Information Report, Ex.P.3 is Letter of Advice and Ex.P4 is Chemical Analysis Report. M.Os 1 and 2 are sample bottles. The evidence of PW.1 is that on 25.01.2021 at about 11.30 PM, he along with his staff reached to Nivagam village limits, Kothuru Mandal and they found the accused 1 and 2 in possession of50 ltrs. Of I.D.arrack. Then they tried to secure mediators but no body come forwards to act as mediators. Then PW.1 prepared the self occurrence report and seized the contraband from the accused under the cover of occurred report and the same is marked as Ex.P1.

Basing on the Ex.P.1 occurrence report, PW.1 registered the case in Cr.No.33/2021 under section 7(B) r/w 8(B) of A.P. Prohibition Amendment Act 2020.

11.In his cross examination, PW-1 admitted that the scene of offence was not mentioned in specific in Ex.P.1 occurrence report. He did not secure the independent mediators from the scene of offence. He did not secure the village officials as mediators and also not mentioned their names in Ex.P.1 occurrence report.

12.In this case PW-1 was examined and deposed that the accused 1 and 2 were found in possession of 50 litters of ID arrack and he tried to secure mediators but no body come forward. Basing on the Ex.P.1 occurrence report, Ex.P.2/FIR was registered against the accused under 7(B) r/w 8(B) of AP Prohibition amendment Act. As per evidence of PW.1 the alleged scene of offence is a busy locality where there is every possibility to secure mediators, but he did not secure the mediators and not complied mandatory provi- sion under section 100(4) of Cr.P.C. Even in the evidence of PW.1, it was not elicited whom they asked to act as mediators and who refused to act as such and their names and the ac- tion taken by them when they refused to act as mediators. Except PW.1, there are no inde- pendent mediators in this case. Non securing of the independent mediators for the Ex.P.1 occurrence report is fatal to the case of prosecution which was held in the case law In Waltair

Club, Visakhapatnam represented by its secretary Vobbilisetty Seetharamaiah Vs

State of Andhra Pradesh represented by its Principal Secretary Department of Excise and prohibition, Velegapudi, Amaravathi, Gunturu District and others. (2022(3) ALT 343 (AP)) in para 34,35 it was held by the Hon’ble High Court of Andhra Pradesh in WP 18141 of 2021 dated 29-03-2022 that no attempt was made to secure independent mediators to act as mediators at the time of conducting panchanama by respondent no.6 as prescribed under section 100(4) of Cr.P.C. which mandates before making a search , the concerned officer shall call upon two or more independent or respectable inhabitant of the locality in which the place to be searched is situate or any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search and non compliance of section 100(4) of

Cr.P.C to the panchanama report which is basis for registering FIR is vitiated and contrary to the procedure contemplated under law and quashed the FIR against the accused. Yeduru

Sreenivasulu Reddy Vs the State of Andhra Pradesh (2001 ALD (crl) 347). Where in it 5

CC.256/2021 (FAIR)

was held that at the time of Seizure, they have to conduct Panchanama/Mediators report in the presence of independent mediators by following the procedure Prescribed under section 100(4) of Cr.P.C.

13.Further the prosecution did not file any proceedings of the commissioner to show that they have produced the seized contraband before the Superintendent of Police,

Srikakulam and its confiscation orders. Therefore the prosecution failed to prove that they have seized the contraband from the accused 1 and 2 and to prove the authenticity of the seized contraband.

14. In view of the above, the prosecution failed to prove the guilt of the accused 1 and 2 beyond all reasonable doubt, therefore the benefit of doubt goes to accused. This point is answered accordingly.

15.In the result, the accused 1 and 2 found not guilty for the offence punishable under section 7-B r/w 8-B of A.P.Prohibition Amendment Act 2020. Accordingly he is acquit- ted under section 248 (1) Cr.P.C for the above said offence. The bail bonds of accused shall stands to be cancelled after expiry of appeal time. M.Os-1 and 2 shall be destroyed after ex- piry of appeal time.

Typed to my dictation by Typist, corrected and pronounced by me in the open court on this the 19th day of April, 2024.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1 ST CLASS

AMADALAVALASA (FAC) KOTHURU

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution : For Defence : PW1: D.Prabhakararao, SEB SINone

Documents marked For Prosecution:

Ex.P1: Occurrence Report, dated 25.01.2021

Ex.P2: First Information Report dated 25.01.2021

Ex.P3: Letter of advice dt.25.01.2021

Ex.P4: Chemical Analysis Report dated 20.03.2021

For Defence: -Nil-

Material Objects

M.Os 1 and 2: two I.D. Sachets each 100 ml.

Sd/- S.Mani,

JUDICIAL MAGISTRATE OF 1 ST CLASS

6

CC.256/2021 (FAIR)

AMADALAVALASA (FAC) KOTHURU

// true copy//

Judl.Magistrate of 1st Class, Kothuru